Workplace Issues: Prior convictions can’t be used blindly against job applicant

Lindy Korn

It is a violation of the New York State Human Rights Law for an employer to deny employment to any individual because that individual has been convicted of one or more criminal offenses “when such denial is in violation of the provisions of article 23-A of the correction law,” Human Rights Law, Section 296.15.

Two exceptions contained in the statute permit a respondent to consider prior criminal offenses: when there is a direct relationship between the offense and the employment sought, or where the employment sought would involve “an unreasonable risk to property or to the safety or welfare of specific individuals or the general public,” N.Y. Corr. Law, Section 752.

While making a determination regarding the two exceptions, a respondent must consider the following factors in Article 23-A of the Correction Law: the public policy of New York State to encourage the employment of persons previously convicted; the specific duties and responsibilities necessarily related to the employment sought; the bearing, if any, the criminal offense will have on his fitness or ability to perform his duties or responsibilities; the time elapsed since the commission of the offense; the age of the person at the time of the criminal offense; the seriousness of the offense; any information produced by the person or on his behalf regarding rehabilitation and good conduct; the respondent’s legitimate interest in protecting property; the safety and welfare of specific individuals, or the general public, N.Y. Corr. Law, Section 753.1.

In the recent case of Linda M. Stranahan v. Verizon New York Inc., (NYSDHR case no. 10124420 [April 25]), the respondent-employer failed to hire the complainant because of a prior conviction for conspiracy, and the complainant was awarded $7,500 for mental anguish. The respondent’s human resource staffer applied the enumerated Correction Law factors only after the employment denial.

The information known to the staffer on Feb. 19, 2008, was that complainant had been convicted of the conspiracy to commit murder. However, at a public hearing, the staffer testified to a more robust understanding of complainant’s circumstance although she only became aware of those issues at an October 2008 investigation conference.

The human resource staffer did not properly weigh all the Correction Law factors when they were considered, rather she considered her own personal experiences regarding relationships instead of relating complainant’s conviction to the job. Additionally, the staffer rejected complainant’s successful post-incarceration, eight-year work history as a finisher and subsequently a supervisor. Thus, the weighing of the factors here was a sham.

Complainant was entitled to an award for mental anguish and humiliation caused by respondent’s unlawful conduct. Mental injuries, under the NYS Human Rights Law may be proved by the complainant’s own testimony, corroborated by reference to the circumstances of the alleged misconduct. The only evidence of mental anguish and humiliation was complainant’s testimony that she was shocked, upset and had difficulty sleeping when respondent withdrew the job offer. There was no evidence of any medical treatment, therefore an award of $7,500 was deemed appropriate.

The experience of pursuing a claim of discrimination based on the loss of a job opportunity, due to prior criminal convictions, and proving that discrimination, provided restorative justice for complainant. The realization that Verizon, as a result of this decision, will have to train all personnel involved in the process of handling applicants with criminal convictions, gives complainant hope that others similarly situated, will not be denied a job opportunity based on their criminal convictions, without the proper application of the legally required factors.

Representing the complainant was an honor. This case for her was about a missed job opportunity, based on being judged for a criminal offense without the protections provided by New York law. As a result of the trial, she now can sleep again, knowing that her past cannot be used against her blindly.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at [email protected] or (716) 856-KORN (5676).